Matter of Cheryl B. K. (Ethel P. B.)
Annotate this CaseDecided on September 18, 2012
Supreme Court, Broome County
In the Matter of the Application of Cheryl B. K., Petitioner, Pursuant to Article 81 of the Mental Hygiene Law for the Appointment of a Guardian of the Person and Property of Ethel P. B., an Alleged Incapacitated Person, Respondent.
2012-973
Levene Gouldin & Thompson, LLP (Alyssa M. Barreiro, Esq., of counsel, Binghamton, attorneys for petitioner)
David B., self represented
Mental Hygiene Legal Service, Third Dept. (Hollie S. Levine, Esq., of counsel, Court Evaluator)
Aswad & Ingraham (William M. Thomas, Esq., of counsel, Court appointed counsel for Ethel B.)
David H. Guy, J.
This matter was commenced by the filing of a Petition on April 30, 2012 by Cheryl B. K., requesting the appointment of a Guardian of the person and property of her mother, Ethel P. B.
An Order to Show Cause was executed by the Court on May 4, 2012, directing that Mrs. B. show cause why a Guardian should not be appointed for her. The Order to Show Cause appointed Mental Hygiene Legal Service of the Third Department (MHLS) as Court Evaluator and William M. [*2]Thomas, Esq., as counsel to Mrs. B. The matter came on for a hearing on June 7, 2012, with appearances by Petitioner, Cheryl K.; Levene Gouldin & Thompson, LLP (Alyssa M. Barreiro, Esq., of counsel), attorney for Petitioner; David B., son of Mrs. B., pro se; Mrs. B.; William M. Thomas, Esq., counsel to Mrs. B.; and Hollie S. Levine, Esq. of MHLS as Court Evaluator. Ms. Levine's report as Court Evaluator, dated June 1, 2012, was duly admitted into evidence.
At the hearing on June 7, 2012, the Court found that Mrs. B. suffers from functional limitations and that the appointment of a Guardian is necessary to protect Mrs. B. with respect to property management. Mrs. B. consented on the record to the appointment of M & T Bank, NA (M & T) as Guardian of her property. Both Cheryl K. and David B. also consented to the appointment of M & T as property Guardian.
Written Interim Findings were executed by the Court on June 29, 2012, together with an Order and Judgment appointing M & T as Guardian of the property of Mrs. B. with specific property management powers as set forth in that Order, and appointing M & T as sole Successor Trustee of the Joint Trust Agreement Between David Alexander B. and Ethel P. B. dated June 20, 2005 (hereinafter Bourne Trust), the Court having accepted the resignations of Cheryl K. and David B., the current trustees of the B. Trust. The Order and Judgment appointed Cheryl K. and David B. as Trust Advisors to the B. Trust, with authority (1) to receive copies of trust statements; and (2) to consult with the trustee regarding distributions of the trust or dispositions of assets of the trust, which consultations are advisory and in no way reduce or eliminate the discretionary authority or powers of M & T, as trustee.
Mrs. B. executed a Florida form of Durable Power of Attorney in favor of both her daughter and son on June 30, 2005, which Power of Attorney included health care decision making authority. Mrs. B.'s husband was also appointed on the Power of Attorney, but he passed away on July 28, 2011. At the hearing on June 7, Mrs. B. confirmed her continuing need and desire for an agent to communicate medical decisions for her, should the need arise. When advised that New York law (and practicality) require that one individual have ultimate medical decision making authority, Mrs. B. specifically declined to choose between her children, stating her desire that either her children work out between them who would have primary medical decision making authority, or that the Court make that decision. Mrs. B. maintained this position steadfastly throughout these proceedings. The matter was adjourned to allow the parties the opportunity to work out an agreement with respect to addressing Mrs. B.'s personal needs.
Mrs. B.'s children were unable to come to an agreement and the hearing was continued with two additional days of evidentiary proceedings, August 2 and August 23, 2012. The focus of the evidence received by the Court was identifying Mrs. B.'s needs, identifying an appropriate care plan to address those needs, and identifying the proper venue(s) for delivery of necessary services to Mrs. B. The Petitioner retained the services of a geriatric care manager, Margery Tubbert of Elder Care Management Solutions, Binghamton, New York, to assess Mrs. B's status and care needs. Ms. Tubbert prepared a document entitled Assessment Summary and Care Recommendations. David B. retained the services of geriatric care manager Amy Schine, of GeriEd Consulting, Eden, Maryland, who adopted the factual background findings and recommendations of Ms. Tubbert and prepared a written Care Plan Recommendation for Mrs. B., designed to effectuate delivery of necessary services to Mrs. B. in and around Chincoteague, Virginia, where David has a home and desires to [*3]relocate his mother. Both Cheryl and David agree that their mother needs a safe and effective care plan, which will evolve over time as she ages and her needs change and, inevitably, grow. Cheryl and David disagree on what the most appropriate venue is for the delivery of Mrs. B.'s necessary services. Cheryl's position is that Mrs. B.'s existing residence, the memory unit at Castle Gardens, an assisted living facility in Broome County, New York is the better location, while David desires to provide comparable services for Mrs. B. in a more independent setting, involving a greater degree of direct service provision and oversight by David and his family, supported by professionals and community support services.
The facts relevant to the Court's determination on the need for and identity of a personal needs guardian for Mrs. B. are as follows: Ethel is a 90 year old woman, pleasant and attentive, erect of bearing despite her advanced age, who has significant short term memory impairment necessitating continuous supervision and assistance. Her cognitive limitations are progressive and her needs will increase over time. Until the last illness and death of her husband in July of 2011, she lived with him in a home they shared in Florida for some period of time. At the time of Mr. B.'s final illness, Mrs. B. moved into an assisted living facility in Florida. After Mr. B.'s death, Ethel relocated to Vestal and lived briefly with Cheryl. She then relocated to an independent apartment on Chincoteague Island, Virginia, where David had set up some care giving assistance. In December of 2011, while David was scheduled to be on vacation, Cheryl brought her mother back to Vestal. While the details are disputed, it appears that Cheryl had concluded that having her mother live with her and her husband was not a viable long term alternative and communicated that fact to David. The siblings agreed that it was appropriate to put Mrs. B. on the waiting list for the memory unit at Castle Gardens. David anticipated his mother returning to Chincoteague, but an opening occurred and Cheryl placed her mother at Castle Gardens, where she has remained since January of 2012.
Mrs. B. expresses love and affection for both of her children in discussions with the Court Evaluator, with her attorney, and to the Court in an interview with her and her counsel following the completion of the evidentiary hearing. It is evident she enjoyed her time in Chincoteague, including
her interactions with David's family and others in that community. She has adapted well to the memory unit at Castle Gardens and is content there, while continuing to express an unwavering desire to go back to Chincoteague, to the setting and independence she enjoyed when she was there in close proximity to and contact with David.
It is not disputed that Mrs. B. suffers functional limitations which necessitate assistance and supportive services for her daily living. Her children agree, the Court Evaluator's report confirms this, and Ethel B. herself acknowledges her need for assistance. The Court reaffirms the findings set forth in the Interim Findings of June 29, 2012 and finds that the appointment of a guardian is necessary to protect Ethel B. with respect to personal management needs, and that she has consented on the record to the appointment of a personal guardian. The Court also finds that the advance directives put in place by Mrs. B. are not effective due to the inability (to date) of the named agents (her children) to co-operate and agree.
The mandate of Article 81 is that when a guardian is needed, the powers given be the least restrictive alternative and afford the incapacitated person the greatest amount of independence and self determination of which they are capable. The guardianship must be tailored to the individual needs of Mrs. B., taking into account her personal wishes, preferences and desires, and allowing her to participate in the decisions affecting her life. Mental Hygiene Law § 81.01. While the "best [*4]interest" of Mrs. B. is a guiding principal for the Court, the Court must be careful not to unduly substitute its judgment for the judgment of Mrs. B. Matter of Williams, 194 Misc 2d 793, 798 (Supreme Court, Suffolk Co., 2003) The "history and spirit of Article 81 are replete with references to respecting the wishes of the incapacitated person to the extent possible". In re Pflueger, 181 Misc 2d 294, 303 (Surrogate's Court, New York County, 1999). In Pflueger, where the issue was a proposed transfer of the incapacitated person's assets, the court held that evidence of the person's wishes compelled it to "approve any act so long as it falls within the range of reasonable actions for a given situation". Id. at 299. Mrs. B.'s wishes should certainly be given as much weight in a hearing centered on determining where she will live.
The selection of a guardian necessarily involves a judgment on the facts and lies within the Court's discretion. Matter of VonBulow, 63 NY2d 221 (1984). This is never more true than when the Court must decide between two competing family members. The oral nomination of a guardian by Mrs. B., even where that nomination is indirect - by her expression of a preference of where she wants to live - must be accepted by the Court unless the Court determines the nominee is unfit. MHL §81.19(e). In re G.W.C., 4 Misc 3d 1004(A) (Supreme Court, Tompkin's Co., 2004).
The Court must be satisfied that the health and safety of Mrs. B. is adequately addressed by the guardianship. The Court should not allow Mrs. B. to take undue or uncomprehending risks. However, the Court's balancing of its view of Mrs. B.'s best interest, her right to maximum independence and her clearly and consistently stated desires does not mandate, nor frankly can it achieve, a risk free solution.
The Court is satisfied that it is David B.'s intention and desire to provide his mother with appropriate assistance and services, as guided by geriatric care professionals. His proposed care plan was modified to take their recommendations into consideration. There are likely more risks associated with delivering services in the setting David proposes for his mother, but her current setting at Castle Gardens is not free of risk. Considering all of the circumstances and mindful of the mandate for the least restrictive alternative that allows Mrs. B. the greatest opportunity for independence and self determination, the Court finds that the additional risks that may be associated with Mrs. B.'s relocation to and continued residence in Chincoteague, as proposed by her son, are not inappropriate for her.
The petition is granted and David B. is appointed Guardian of the person of his mother, ETHEL P. B. In furtherance of this determination, it is hereby
ORDERED AND ADJUDGED, that the personal Guardian is directed to retain the services of Amy Schine at GeriEd Consulting, or a similar professional, to oversee the care plan to be put in place for ETHEL P. B. The care plan will be reviewed and updated on at least an annual basis. A copy of the care plan will be provided to ETHEL P. B.'s daughter, Cheryl K. The expenses of the geriatric care manager, subject to annual review by the Court Examiner and ultimate review by the Court, are found to be a reasonable and necessary expense of the guardianship. Review and consultation on the care plan by Margery Tubbert of Elder Care Management Solutions, or a similar professional retained by Cheryl K., again subject to annual review by the Court Examiner and ultimate review by the Court, are also found to be reasonable and necessary expenses of the guardianship; and it is further
ORDERED AND ADJUDGED , that while ultimate medical decision making authority will lie with David B., as personal Guardian, Cheryl K. shall have access to ETHEL P. B.'s medical [*5]providers and information, subject to review by the Court in the event such access becomes burdensome to the medical providers. Unless she expresses a desire not to be consulted, David B. will consult with Cheryl K. regarding care and medical issues of his mother, to the extent reasonably possible.
Dated: September 18, 2012______________________________
HON. DAVID H. GUY
Acting Supreme Court Justice 6JD
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